The Moral Incompetence of the Judiciary

Gregory C. Sisk

A society so riven that the spirit of moderation
is gone, no court can save; . . . a society where
that spirit flourishes, no court need save; . . .
in a society which evades its responsibility by thrusting
upon the courts the nurture of that spirit, that spirit in
the end will perish.

- Judge Learned Hand

During the past three decades, a vision of the federal judiciary as the
moral tutor appointed for a recalcitrant society has become dominant in
the American legal academy and increasingly within the courts
themselves. Most legal scholars, in one form or another, have embraced
constitutional litigation as the ideal forum for moral evaluation of
public policy. Rather than merely being the occasion for enforcement of
a legal text by interpretation according to standards of law, the
Supreme Court's exercise of judicial power to review the
constitutionality of government decisions has become an opportunity for
exploration of public virtue and national aspirations.

Michael J. Perry, a leading legal scholar, argues that judicial review
should serve the role of "prophecy," calling us to a deeper
understanding of ourselves through moral exhortation by the Supreme
Court. Stanley Ingber, another prominent academic, envisions the Supreme
Court as the "mediator" of a public dialogue, which he hopes will expand
throughout society, but in which the Court holds the preeminent position
in initiating and structuring a national discussion of fundamental
values. Owen Fiss urges judges to avoid an "arid and artificial" focus
upon the words and original meaning of constitutional provisions by
instead reading "the moral as well as the legal text" of the
Constitution. In sum, for most teachers in American law schools,
constitutional law is seen as intertwined with moral philosophy, and
court adjudication as the preferred venue for molding the American
character.

In more recent years, the Supreme Court has lowered its profile and
declined to encompass ever larger areas of public and private life
within the realm of constitutional imperatives imagined and imposed by
the courts. Most in the legal academy have decried this change in
judicial attitude, arguing that the Court is abdicating its
responsibility to reshape society and forge a national community based
upon aspirational ideals.

Assuming the current trend in constitutional jurisprudence holds, we
must ask whether such a course really is bad or whether it is a healthy
development, reflecting a shift from a fixation on rights and judicial
governance to democratic dialogue, political compromise, and discussion
of values in a moral-cultural context. Should our society's dialogue
about values proceed in the context of the Constitution, and more
particularly, in the arena of constitutional litigation with primacy
given to the courts as moral tutors?

In any event, it is far from clear that the Court truly has abandoned
its arrogated role of national guidance counselor. The legal academy and
its followers in the media appear to have a powerful influence upon the
Court, especially given the apparent desire of the Court's justices to
secure the praise of academic scholars and national reporters. Indeed,
three justices in a deciding opinion recently asserted rather imperial
authority, suggesting that the Court properly may instruct the public to
defer to its resolution of a divisive issue and to follow loyally the
path it has marked.

The Constitution is the framework of our national government and a
guarantor of fundamental rights. But it is not the sole source of values
or principles for us as a nation or as a people. A dialogue about
fundamental constitutional values attendant to constitutional
adjudication must be focused upon the Constitution as a legal text, and,
because it is a legal text, the debate must be grounded in legal sources
and legal analysis. We ask too much of the Constitution, and too little
of ourselves, when we view it as the wellspring from which to draw
comprehensive notions of public virtue or when we project onto it our
aspirations as a national community.

The Supreme Court lacks the moral competence to promote a certain vision
of American moral aspiration, rather than dutifully enforcing particular
values already incorporated into our national charter. The judiciary
lacks competence both in the sense of its authority to assume such an
elevated role and in its qualification for and ability to carry out such
a mission. As Michael Stokes Paulsen reminds us, "The legitimacy of the
Supreme Court in our constitutional system rests not on its ability to
fashion social and political compromises but on its ability to render
decisions that the public readily can recognize as straightforward
interpretations of a constitutional or statutory text." We do not choose
the members of our judiciary because of their eminence as philosophers
or their insight as moralists. Although each member of the bench
properly dons the black robe of the judge, the white robe of the prophet
ought to rest uneasily upon his shoulders.

Moreover, judicial adjudication skews moral discourse in a particular
legalistic direction and suppresses the value of deliberation in other
settings. Because constitutional debate is primarily the preserve of
lawyers, dialogue in academic literature or constitutional litigation is
conducted in a legal dialect that both distorts discussion of values and
makes it inaccessible to the general public. While judicial review is
vital to safeguard our constitutional freedoms, a degree of moral and
philosophical discussion flowing from constitutional litigation cannot
justify the costs that overreaching judicial rights declaration has for
public debate and democratic governance.

Finally, moral discourse is too important to be captive to
constitutional litigation or, for that matter, to governmental
institutions, whether political or judicial. Our values as a people
should not be constrained within the straitjacket of the Constitution.
The Constitution serves the discrete purposes of establishing the
framework for a limited government and for ensuring certain basic rights
for individuals. It has little to say about most of the matters that
should be important to us as individuals and as a community.
Notwithstanding the growth of government and the proliferation of
litigation, the center of life for most Americans remains with family,
friends, and private groups-not political and legal institutions. Many
of our social problems today demand a resurrection of values in a manner
that cannot be compelled by constitutional command or legislative
enactment.

I

A theory of constitutional law that may be out of fashion in today's
legal academy, but that fits comfortably within the modern conservative
and the traditional liberal views of the courts, begins with certain
basic premises: the existence of law and the possibility of meaningful
rules of law. It must recognize the Constitution as a legal text subject
to legal interpretation by judges who derive their authority to render a
judicial decree from the existence of the Constitution as a source of
law. Whether one views constitutional interpretation as grounded in a
theory of original meaning or the traditional liberal theory of judicial
restraint and neutral principles, the distinctive nature of this
approach is that it is legal in nature. One need not retreat into
formalism, ignore the importance of practical wisdom, or deny the
creative element in judging to insist that constitutional decision
making be carefully bounded by the text, historical understandings,
legal doctrine, and a modest view of the role of the judiciary.

A constitutional decision, both in outcome and reasoning, must be
justified by reference to legal authority. John Hart Ely writes
that the Supreme Court "is under an obligation to trace its premises to
the charter from which it derives its authority" before it may make any
constitutional pronouncement. The values espoused in a constitutional
decree must be rooted in the Constitution, not in our hopes and
aspirations for a better society. Judicial decision making calls for
wise employment of that singular form of human thought known as legal
reasoning. We do not ask our Courts to engage in capacious moral or
philosophical inquiry. As Judge Learned Hand once observed, we have not
anointed the Justices of the Supreme Court to rule us as a "bevy of
Platonic Guardians."

There is no reason to assume that judges possess sufficient knowledge
and virtue to undertake a mission of moral evaluation through the
episodic venues of cases and controversies. The democratic process of
political institutions accountable to the people is not so hopelessly
imperfect that the preceptorship of the courts is preferable. The
perception of the average American, however simplistic or formalistic
the legal academy may regard it, remains that the judge's vocation is
the neutral application of established rules of law. Americans would not
long respect or tolerate a Court that forthrightly assumed the position
of national moral guidance counselor. If the Court were truly to
undertake the charge of serving as our national conscience, then the
Court would simultaneously lose its legitimacy as a court of law.

What then is the purpose of constitutional review? When the
constitutional mandate is sufficiently clear from the text, the
understanding of the framers, or the structure of constitutional
government, it removes certain matters from popular control and
majoritarian rule. The Constitution is designed to be a trump card. When
the Constitution speaks, the Court should amplify that sound loudly and
with a commanding voice. When the Constitution is silent, the Court
likewise should remain silent. If we free the Supreme Court from its
bondage to a strict legal interpretation of the Constitution and those
values articulated in that document, then the Court has lost its lawful
authority to speak and we have lost our legal obligation to listen.
Reasonable judges, legal scholars, and lawyers will hear the voice of
the Constitution differently. But we must be listening with
legal attention-not with the expectation of hearing the answer
to our hopes and aspirations.

The role of the judiciary in constitutional review is to determine the
substantive principles incorporated in the document for application to
concrete individual controversies, while avoiding as far as possible an
evaluation of the wisdom or desirability of the government policies at
issue. Opposing views of right and wrong are best addressed and
accommodated in a democratic political debate, with the judiciary
serving the vital but secondary role of ensuring that basic rights are
protected to prevent oppression of minorities by majoritarian rule. The
absence of a constitutional right, and thus of a judicial remedy, does
not dictate a narrow or limited vision of a moral society. Rather, it
means that recourse must be made to the political process-or beyond to
the moral and cultural realm of our community.

There is, after all, one other individual right too often neglected by
modern constitutional scholarship-the right of democratic self-
government. Our revolutionary founders fought for the right to elect
their own representatives to make laws by democratic means. This right
of democratic choice and the responsibility of democratic governance is
not promoted by judicial imperialism, even if justified as showing some
responsiveness to popular sentiments or public virtues.

Critics in the legal academy find democratic government inattentive to
their view of fundamental values and failing in the mission of national
community building. In contending for the preeminent position of the
judiciary, they provide a troubling inventory of the imperfections of
democracy, defects that we should soberly consider whenever looking to
political institutions for answers to difficult moral questions.
Nevertheless, as John Hart Ely concludes, "We may grant until we're blue
in the face that legislatures aren't wholly democratic, but that isn't
going to make courts more democratic than legislatures." Reciting the
imperfections of democracy does not lead ineluctably to the conclusion
that the least accountable branch of the federal government is the
better forum for our national debate about public values. The political
branches are forthrightly empowered to reconstitute society; the courts
are limited to adjudication of discrete cases or controversies. The
political branches are intended to be accountable; the judiciary is not.
The members of the political branches are subject to electoral removal;
the judiciary is not.

James Bradley Thayer warned nearly a century ago that "common and easy
resort" to judicial review would tend "to dwarf the political capacity
of the people, and to deaden its sense of moral responsibility." An
ambitious vision of the Supreme Court and constitutional judicial review
as serving the ends of public virtue is without legal justification,
except as bound tightly to the values incorporated into our national
charter. Even if legitimate, moreover, judicial supremacy inhibits,
rather than promotes, general moral discourse about community values and
aspirations.

II

Alexander M. Bickel once described Supreme Court decisions as "the
beginnings of conversations between the Court and the people and their
representatives." He acknowledged that they were "never, at the start,
conversations between equals," given that the "Court has an edge"
because it initiates the discussion with "some immediate action."
Nevertheless, he insisted, "conversations they are."

To say that the Court has an edge in the conversation is an
understatement. The "immediate action" to which Bickel refers is, of
course, the judicial decree. We may embrace the Court's
pronouncement as the articulation of public virtue and accept its
declaration into our public conscience, or we may express abhorrence at
the Court's edict and seek to avoid and overturn its decision as wrong
and unacceptable. But, for the moment, we must live with it. A judicial
decree is not a suggestion or an invitation to a conversation, as every
litigator soon discovers. Moreover, the Supreme Court's declaration of
constitutional law is binding upon the entire polity. As Judge Frank H.
Easterbrook says, "Everyone must dance to the judges' tune whether party
to the litigation or not."

By its decisions, an imperial Supreme Court may choose which values to
elevate and commend to public approval and which values to denigrate as
unworthy of further consideration. The clearest example of a deliberate
adoption of one value at the expense of another, a judicial resolution
that continues to distort public choice and moral discourse, may be
found in the 1973 abortion decision of Roe v. Wade. This
decision announced a generalized and fundamental right to privacy,
encompassing the power to undertake conduct with significant social and
moral ramifications. The Roe decision created an absolute right
to abortion during the first trimester of pregnancy and allowed only for
very limited regulation of abortion even late in pregnancy. Although the
Court purported to avoid "the difficult question of when life begins,"
the nature of the decision effectively answers that question. The
Court's aggressive withdrawal of protection from fetal life appears to
resolve the question of when human life begins. Justice Byron White
wrote in dissent that the Court elevated the value of individual
autonomy over the value of the "continued existence of . . . life or
potential life," while simultaneously pretending not to make such a
choice and failing to demonstrate a constitutional warrant for
preferring one value over the other.

By transforming abortion from a controversial and complex moral and
political question into a constitutional entitlement, Roe v.
Wade bestowed upon abortion the status of a positive good. It
withdrew from the supporters of liberal abortion laws the obligation to
frame an ethical justification, beyond absolute claims of personal
control and an extremely isolated view of individual autonomy. As a
fundamental right, abortion is inherently justified. For many years
following Roe, most of those who supported liberal access to
abortion would simply cite the Supreme Court's ruling and regard that
reference as obviating any need to discuss the morality of abortion or
consider the social impact of hundreds of thousands of abortions
performed annually. Only when the pro-life movement appeared to be
succeeding did the pro-choice movement become energized and outspoken in
defending the right to an abortion on political grounds, although even
now it tends to avoid discussing the ethical dilemma underlying
abortion.

Most Americans seem uncomfortable with a climate in which, as Jo McGowan
puts it, "the destruction of unborn children is acceptable." They regret
the moral side-effects of a regime of abortion-on-demand:
irresponsibility in sexual conduct, evasion of obligations by putative
fathers, devaluation of children, and intolerance for the dependent,
"inconvenient" members of our society. By framing abortion as a nearly
unqualified constitutional right, without fully considering the claims
of fetal life, we have not taken a stride to a more virtuous society.
Instead, we have done great harm to our sense of community and
responsibility and respect for human life. Mary Ann Glendon asks us to
consider "what a set of legal arrangements that places individual
liberty or mere lifestyle over innocent life says about, and may do to,
the people and the society that produces them."

The Supreme Court, by loosening the rigid structure of Roe in
recent decisions and approving legislative attempts to ensure informed
consent and familial participation, has restored some measure of
democratic dialogue to the abortion debate. Nevertheless, the Court
continues to adhere to the core holding of Roe establishing a
fundamental right to elective abortion prior to viability. Indeed, in
the 1992 decision of Planned Parenthood v. Casey, three
justices in the majority characterized their decision to preserve
Roe v. Wade as a principled refusal "to surrender to political
pressure," arguing that "to overrule under fire" would threaten the
continued legitimacy of the Court. Thus, the very attempt of the people
to engage in moral disputation with the Court and to challenge the
legitimacy of an earlier decision was taken as proof of the need to
maintain cloture on debate. The Court held onto the basic Roe
formulation for the express reason that to do otherwise would suggest
that they listen to and could be moved by moral dialogue.

In a particularly disturbing passage in the Casey opinion, the three
deciding justices deliberately adopted the role of moral prophecy for a
stubborn and recalcitrant people. They proclaimed that the loyalty of
the American people to constitutional ideas would be "tested" by
following the Court's resolution of the abortion controversy. The
urgings of the legal academy to assume an exalted position as national
moral tutor appear to have been heeded, even by a purportedly
conservative Supreme Court.

If the right to abortion announced by the Supreme Court in Roe
and adhered to in Casey were truly grounded in the text or
history of the Constitution rather than reflecting what Justice White
termed an "exercise of raw judicial power," moral qualms would provide
no basis for avoiding the constitutional directive. I do not expect to
find my moral philosophy codified in the Constitution, and others may
find the moral claim of fetal life outweighed by compelling interests of
equality and individual autonomy. But if we are to have a lively and
fully textured exploration of matters of moral seriousness, both sides
of the debate must figure in the calculation. By pointedly neglecting
one side of the issue, Roe v. Wade stands as an obstacle to
meaningful moral deliberation. Moreover, this was an occasion upon which
the Constitution was silent. The Court thus lacked any warrant for
projecting its commanding voice into the moral discourse about abortion.

Litigation is not a friendly forum for a balanced discussion of the wide
range of values and concerns relevant to disposition of a public issue.
Constitutional litigation and adjudication force communication along a
narrow path, for the focus of legal advocacy is upon rights and wrongs.
The values of responsibility, respect for others, and moral character
are largely missing from what Professor Glendon calls the "rights talk"
of the courtroom. The adversarial process encourages a winner-take-all
attitude and suppresses compromise and accommodation.

The Supreme Court itself has hardly been immune to the centrifugal
tendency to adopt extreme characterizations of opposing positions, as
evidenced by the readiness to label legislative decisions with which the
Court disagrees as "irrational," "prejudiced," "invidious,"
"suppressive," and "defiant." Robert F. Nagel remarks that we "legal
academics have been so busy applauding the judiciary's theoretical
capacity for elevated dialogue and sensitive moral decision making that
we have not much noticed the tenor of much of what the judges have
actually had to say." By moving beyond legal reasoning to resolving
questions of moral and political values, the Court loses the
characteristics of impartiality and independence from politics that are
fundamental to its legitimacy.

Moreover, the forum of the courtroom and the language of the law are
alien and alienating to the average person. By granting preeminence to
the courts, we close the door on those who do not have access to the
legal process and, in a practical sense, to those who do not possess a
degree in law. Constitutional litigation by its nature is exclusionary.
To participate effectively in a constitutive dialogue carried on in the
venue of the courts, one must be a member of the priestly class of our
civil religion: a lawyer or someone with a large measure of legal
knowledge.

"Just as legal language is different in kind from ordinary language,"
Frederick Schauer suggests, "constitutional language may be different in
kind from other legal language." The dialogue of constitutional
litigation is thus twice removed from the ordinary discourse of the
people. Granting the Supreme Court supremacy in conducting discourse
about values through the mechanism of judicial review disempowers the
people from full participation in their government and their
communities.

The authentic voice of the people may be heard in their homes,
neighborhoods, churches, synagogues, and voluntary organizations. The
people do not speak in the language of the law; they do not talk of
texts, precedents, doctrine, multi-pronged tests, or the balancing of
factors. Instead, they speak of affection, moral duty, and commitment,
as well as of needs and rights. We need to encourage and strengthen
their voice, not by more and better Court decisions or laws, but by
removing the impediments to involvement in the community. The
neighborhood picnic and the school meeting are more important than the
test case. The democratic vision offers, Robert A. Dahl writes, the hope
"that by engaging in governing themselves, all people, and not merely a
few, may learn to act as morally responsible human beings."

III

The Constitution is an inspired and inspiring document. The framers and
ratifiers intended it to be a permanent text, establishing fundamental
and immutable principles for republican government. Even this sacred
blueprint of national values, however, sketches only a part of the
cathedral of moral discourse in America. Stephen L. Carter warns that we
must not fall into the error of speaking "as though the Constitution and
the decisions explicating it constitute the whole of public morality."

More important, the question is not only whether to choose between the
legislature and the judiciary in making value choices, but also whether
law and politics-particularly law and politics emanating from the
national centers of government-should play such a predominant role in
moral discourse. The heart and soul of American life remains in what
Professor Glendon calls the "law-free spaces, where social life is left
to the regulation of norms other than those of state-guaranteed law."

The preeminent role that leading legal scholars would grant to the
courts-and thus to the state-to define social values would undermine the
value-constitutive role of intermediary institutions. As often as it has
been a friend, government has been an adversary of mediating structures.
Law and politics have expanded to fill every nook and cranny of society,
crowding out the moral-cultural realm of our lives and displacing
associational and family initiative. Public assistance programs
discourage individual and familial responsibility while simultaneously
shielding self-destructive behavior from the sanction of economic
consequences. Busing of school children to promote racial balance in
classrooms removes children from their neighborhood schools and destroys
a sense of community. Officious social engineers of both the right and
the left abuse the public schools to promote parochial agendas, whether
by sanctioning the recitation of prayers over the school loudspeaker or
by the distribution of contraceptives despite parental objections,
thereby undermining parental authority and impairing the ability of
parents to form their own family values. When government then attempts
to respond to the social problems caused by the breakdown of private
intermediary institutions, its new programs invariably weaken
traditional structures further and make matters in some important
respects worse. Government social policies, according to Nathan Glazer,
are "making no steady headway against a sea of misery."

Family and community may be experiencing a revival today-despite, not
because of, government policy. The yearning for community may be
reflected in the revival of cities in the American heartland, where
neighborhoods survive and private society thrives. A sense of community
has been restored when residents of urban neighborhoods have been given
responsibility for improving their own lives and a voice about decisions
in their communities. As members of the baby boom generation become
parents, they have returned to church with their children.
Significantly, however, the liberal mainline Protestant churches, which
had grown to resemble and imitate the surrounding secular society, have
declined in membership while growth continues in the evangelical and
Catholic churches that have created communities of deeply shared
meaning. There is an increasing consensus about the value of intact two-
parent families, together with an understanding of the social risks
posed by increases in births outside of marriage. Although family
planning experts still scoff, abstinence programs sponsored by private
organizations and churches have successfully reached hundreds of
thousands of teenagers, who are learning the reward of postponing sex
and avoiding pregnancy.

This revitalization of values and community is not proceeding from a
creative and exciting new program devised by the best and brightest in
the federal government or from a judicial edict issued by the Supreme
Court. Rather, at the grassroots level, we are seeing new strength in
and appreciation of local communities and private intermediary
institutions.

The Constitution begins with the words, "We the People of the United
States." We, the People, still grow up in families, live in
neighborhoods, attend local schools, and belong to churches, synagogues,
and voluntary organizations. It is here, in our local communities, that
we must nourish values and a sense of belonging. It is here, where the
moral bonds of voluntary attachment have not yet been stretched beyond
the breaking point, that true moral discourse can be maintained,
especially, as Michael W. McConnell says, "over the highest things-
matters of ultimate truth and value." It is here that we must seek and
realize our aspirations for the future.

Gregory C. Sisk is Associate Professor of Law at the Drake University
Law School.